EXHIBIT 4
RESTRICTED LIMITED PARTNERSHIP
UNITS ACQUISITION AGREEMENT
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AGREEMENT dated as of , 1994 by and between
ALLIANCE CAPITAL MANAGEMENT L.P., a Delaware limited partnership (the
"Partnership"), and (the "Employee").
WHEREAS, the Employee is now employed by Shields Asset Management,
Incorporated, a New York corporation ("Shields"), or Regent Investor Services
Incorporated, a New York corporation ("Regent"), each of which corporation is to
sell its business and substantially all of its assets to the Partnership (the
"Acquisition") pursuant to an acquisition agreement to be entered into (the
"Acquisition Agreement"); and
WHEREAS, in connection with the Acquisition the Employee is to become
an employee of the Partnership in a position in which the Employee can make a
significant contribution to the growth and success of the business which will
thereafter be carried on by the Partnership; and
WHEREAS, the Partnership desires to provide the Employee with an
incentive which will permit the Employee to share directly in the growth of the
business of the Partnership, and to identify the Employee's interest with those
of the Unitholders, by issuing assignments of beneficial ownership of limited
partnership interests in the Partnership (the "Partnership Units"), to the
Employee;
NOW, THEREFORE, and in consideration of the Employee's employment with
the Partnership, the Partnership and the Employee agree as follows:
1. DEFINITIONS. The terms defined in this Section 1, whenever used
and capitalized in this Agreement, will, unless the context otherwise requires,
have the respective meanings hereinafter specified:
"ACQUISITION" has the meaning stated in the preamble to this
Agreement.
"ACQUISITION AGREEMENT" has the meaning stated in the preamble to this
Agreement.
"ADVERSE TAX DETERMINATION" has the meaning stated in Article I of the
Partnership Agreement.
"AFFILIATE" has the meaning stated in Article I of the Partnership
Agreement.
"BOARD" means the board of directors or other governing body of the
General Partner.
"CAUSE" has the meaning stated in Section 4(c) of the Employment
Agreement.
"CLOSING DATE" has the meaning stated in Section 2(b) hereof.
"CODE" means the Internal Revenue Code of 1986, as amended.
"DISABILITY" has the meaning stated in Section 4(b) of the Employment
Agreement.
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"EMPLOYEE" has the meaning stated in the first paragraph of this
Agreement setting forth the parties hereto.
"EMPLOYMENT AGREEMENT" means the Employment Agreement dated as of
November 16, 1993 by and between the Partnership and the Employee.
"PARTNERSHIP" has the meaning stated in the first paragraph of this
Agreement setting forth the parties hereto and shall include, as relevant, any
direct or indirect wholly-owned subsidiary of the Partnership which conducts the
business of the Regent Division and by whom the Employee is employed.
"PARTNERSHIP AGREEMENT" means the Agreement of Limited Partnership of
the Partnership (As Amended And Restated).
"PARTNERSHIP UNITS" has the meaning stated in the preamble to this
Agreement.
"REACQUIRING COMPANY" has the meaning stated in Section 3(b) hereof.
"REGENT" has the meaning stated in the preamble to this Agreement.
"SHIELDS" has the meaning stated in the preamble to this Agreement.
"UNITHOLDER" has the meaning stated in Article I of the Partnership
Agreement.
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"UNIT" AND "UNITS" have the respective meanings stated in Section 2(a)
hereof.
"UNIT PRICE" means an amount per Partnership Unit equal to the
arithmetic mean of the last reported sales price per Partnership Unit regular
way (or, if no such reported sale has taken place on any relevant date, the
arithmetic mean of the last reported bid and asked prices per Partnership Unit
regular way for such date) on the New York Stock Exchange for the 10 trading
days immediately preceding the Closing Date; provided that if the amount so
determined is equal to or less than $20.00, then the Unit Price shall be $20.00
and if the amount so determined is equal to or greater than $23.25, the Unit
Price shall be $23.25.
2. ISSUANCE AND ACQUISITION OF UNITS.
(a) Subject to the terms and conditions of this Agreement, the
Partnership will issue to the Employee, and the Employee will acquire from the
Partnership, that number of Partnership Units (such Partnership Units being
herein referred to as the "Units" and each one of them being herein referred to
as a "Unit"), not including any fractional Unit, equal to the quotient of
(i) $3,000,000, divided by (ii) the Unit Price. The Employee shall not pay or
transfer to the Partnership any cash or property as consideration for the Units.
The issuance and acquisition of the Units will be contingent on the closing of
the Acquisition and the
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effectiveness of a registration statement filed under the Securities Act of
1933, as amended, with respect to the issuance of the Units to the Employee and
certain other employees. The Employee hereby represents that the Employee has
received a copy of a description of the plan embodied in this agreement and in
the related restricted limited partnership units acquisition agreements to be
entered into with other current employees of Shields and/or Regent prior to the
Employee's delivery of this Agreement to the Partnership.
(b) The closing of the issuance of the Units will occur
simultaneously with the closing of the Acquisition on the closing date under the
Acquisition Agreement (the "Closing Date"). The Partnership will deliver to the
Employee a certificate representing the Employee's interest in the Units issued
to the Employee within a reasonable time after such closing.
3. VESTING, FORFEITURE AND RESTRICTIONS ON
TRANSFER OF UNITS.
(a) The Employee's rights in the Units will vest in accordance with
the following schedule:
Aggregate Vested
Anniversary Date Percentage as of
of the Closing Date Anniversary Date
------------------- ----------------
1st 20%
2nd 40%
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3rd 60%
4th 80%
5th 100%
If the Employee ceases to be in the employ of the Partnership by reason of
(i) the Employee's death, (ii) the Employee's Disability, (iii) termination by
the Partnership of the Employee's employment pursuant to Section 4(d) of the
Employment Agreement for any reason other than for Cause, or (iv) termination by
the Employee of the Employee's employment pursuant to Section 4(e) of the
Employment Agreement, the Employee's rights with respect to all remaining
unvested Units will become fully vested on the last day of such employment. For
purposes of the foregoing sentence, if the Employee is in employment with the
Partnership through the end of the Employment Term, Sections 4(d) and 4(e) of
the Employment Agreement shall be deemed to continue in effect until the 5th
anniversary of the Closing Date. In addition, if there is a sale of all or
substantially all of the Partnership's business or assets to a person or entity
(other than an Affiliate of the Partnership that assumes and agrees to honor,
pay and perform the obligations of the Partnership hereunder) which is in
connection with a liquidation of the Partnership other than in connection with
an Adverse Tax Determination, the Employee's rights with respect to all then
unvested Units
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will become fully vested immediately prior to such sale. In order to assist the
Board in making a determination as to the Disability of the Employee for
purposes of this paragraph (a), the Employee will, as reasonably requested by
the Board, (i) be available for medical examinations by a physician chosen by
the Board and approved by the Employee, whose approval will not unreasonably be
withheld, and (ii) grant the Board and any such physician reasonable access to
all medical information and records concerning the Employee deemed necessary or
appropriate by the physician to determine whether the Employee is incapacitated,
arrange to furnish copies of such information and records to them, and use the
Employee's best efforts to cause his own physician(s) to be available during
business hours to discuss the Employee's incapacity or potential incapacity with
them.
(b) The Employee will forfeit the Employee's rights with respect to
all then unvested Units (i) as of the last day of his employment by the
Partnership, if the Employee ceases to be in the employ of the Partnership other
than under circumstances in which his rights in the Units vest in accordance
with paragraph (a) of this Section 3, or (ii) as of the date of the written
determination described in Section 15.1(a)(iv) of the Partnership Agreement (in
connection with the reasonably contemplated insolvency or bankruptcy of the
Partnership), if the Partnership is,
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accordingly, then dissolved and liquidated. The Partnership or any Affiliate
thereof to which the Partnership (or any such Affiliate) has assigned the
reacquisition rights hereunder in writing (the Partnership or such other entity
having such repurchase rights being sometimes herein referred to as the
"Reacquiring Company"), will reacquire any such forfeited Units, in accordance
with the provisions of Section 4 hereof. The Employee will forfeit the unvested
Units to the Reacquiring Company without receiving any consideration therefor.
An Affiliate of the Partnership to whom the Partnership (or any such Affiliate)
has assigned the reacquisition rights as provided above will promptly furnish to
the Partnership a copy of any written assignment by the Affiliate of the
reacquisition rights hereunder.
(c) Except as otherwise provided in this Agreement, the Employee may
not sell, assign, transfer, pledge or otherwise dispose of or encumber any of
the Units, or any interest therein, until the Employee's rights in such Units
vest in accordance with this Agreement.
4. REACQUISITION OF UNITS.
(a) If the Employee forfeits any portion of the Units in accordance
with Section 3(b) hereof, the Partnership will send notice of the forfeiture to
the Employee as soon as practicable after the date as of which such Units are
forfeited, with a copy to the Reacquiring Company if other than the Partnership.
The notice will set
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forth (i) the date as of which the Units were forfeited, (ii) the reason for the
forfeiture, (iii) the number of Units forfeited and to be reacquired, (iv) the
name and address of the Reacquiring Company, (v) the date by which the
certificates representing the Units, duly endorsed for transfer, should be
delivered to the Reacquiring Company, and (vi) where the certificates so
endorsed should be delivered by the Employee.
(b) The Employee will have no further rights as a Unitholder of the
Partnership with respect to the forfeited Units beginning with the date of
forfeiture, including, without limitation, any right to receive any distribution
payable to Unitholders of record on or after the date of the forfeiture, and the
Employee will repay to the Partnership any such distribution received by the
Employee in respect of such Units payable on or after such date without interest
promptly upon notice by the Partnership.
(c) If the Employee delivers to the Reacquiring Company a certificate
which represents vested Units as well as forfeited Units, the Reacquiring
Company will, or will arrange for the Partnership to, send promptly to the
Employee a certificate representing the vested Units. The Employee will
reimburse each of the Reacquiring Company and the Partnership, if not the
Reacquiring Company, for their respective expenses (including reasonable
attorneys' fees) incurred in connection with any reasonable steps they may
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take to obtain the repayment of distributions referred to in paragraph (b) of
this Section 4, and, if the certificates representing forfeited Units are not
duly delivered, to obtain the certificates from the Employee or to cancel
certificates not duly delivered.
5. LEGENDS ON UNIT CERTIFICATES. Every certificate representing
Units with respect to which restrictions pursuant to Section 3(c) hereof remain
in effect will bear a legend substantially as follows:
This certificate and the Units represented hereby are
subject to the terms of an agreement between
[ ] and Alliance Capital Management L.P. The
Units are subject to forfeiture to (and reacquisition by)
Alliance Capital Management L.P. or its assignee under
certain circumstances and may not be sold, assigned,
transferred, pledged or otherwise disposed of or encumbered
in whole or in part, at any time, except as provided in such
agreement. A copy of such agreement is available for
inspection at the executive offices of Alliance Capital
Management L.P.
As soon as any Units cease to be subject to such restrictions, the Employee may
surrender to the Partnership the certificate or certificates representing such
Units and receive in exchange therefor a new certificate or certificates
representing such Units free of such legend and a certificate or certificates
representing the remainder of the Units, if any, with such legend. The Employee
hereby consents to the placing on certificates representing any Units any
additional legends that the Partnership reasonably
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deems advisable. The Employee acknowledges that the Partnership may give stop-
order instructions to the Partnership's transfer agent with respect to the
certificates to reflect the restrictions on transferability described herein.
6. INJUNCTIVE RELIEF. In addition to any other rights or remedies
available to the Partnership as a result of the breach of the Employee's
obligations hereunder, the Partnership will be entitled to seek and, if
appropriate in the judgment of a court with proper jurisdiction, obtain an
injunction or other equitable remedy to enforce such obligations, and no bond or
security will be required in connection therewith. If the Partnership is
successful in any suit or proceeding instituted by the Partnership to enforce
any of the provisions of this Agreement or on account of any damages sustained
by the Partnership by reason of the violation by the Employee of any of the
terms and conditions of this Agreement to be performed by the Employee, the
Employee will pay to the Partnership all costs and expenses (including
reasonable attorneys' fees) reasonably incurred by it. If the Partnership is
successful with respect to a part but not all of such a suit or proceeding, such
costs and expenses shall be fairly allocated, and the Employee will pay only the
portion allocated to such part as to which the Partnership is successful.
Similarly, if the Employee is successful in any
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suit or proceeding instituted by the Employee to enforce any of the provisions
of this Agreement or on account of any damages sustained by the Employee by
reason of the violation by the Partnership of any of the terms and conditions of
this Agreement to be performed by the Partnership, the Partnership will pay to
the Employee all costs and expenses (including reasonable attorneys' fees)
reasonably incurred by the Employee. If the Employee is successful with respect
to a part but not all of such a suit or proceeding, such costs and expenses
shall be fairly allocated, and the Partnership will pay only the portion
allocated to such part as to which the Employee is successful.
7. NOTICES. Any notice made or given in connection with this
Agreement must be in writing and will be deemed to have been duly given when
delivered by hand or by telecopy or mailed by registered or certified mail,
return receipt requested, to those listed below at the following respective
addresses or telecopy numbers or at such other address or telecopy number as
each may specify by notice to the others:
(a) To the Employee:
At the address for the Employee [or telecopy number] set
forth below.
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(b) To the Partnership:
Alliance Capital Management L.P.
c/o Alliance Capital Management Corporation
1345 Avenue of the Americas
New York, New York 10105
Attention: Secretary
Telecopy Number: (212) 554-4613
8. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective heirs, representatives,
successors and assigns.
9. RIGHT TO TERMINATE EMPLOYMENT. Nothing contained in this
Agreement will confer upon the Employee a right to be employed by, or to
continue in the employ of the Partnership, or interfere in any way with the
right of the Partnership to terminate the employment of the Employee at any
time, with or without cause.
10. RIGHTS AS UNITHOLDER. Except as provided in this Agreement or in
the Partnership Agreement, as of the date of any closing of the issuance of
Units to the Employee as provided for in this Agreement, the Employee will have
all of the rights under the Partnership Agreement that a Unitholder would have
with respect to the Units issued to the Employee at such closing (including,
without limitation, rights to vote and to receive distributions payable with
respect to such Units on or after that date), provided that, in accordance with
Section 83 of the Code, until the Employee's rights in any such Unit vest in
accordance with
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this Agreement or the Employee makes an election under Section 83(b) of the Code
with respect to this acquisition of the Units, the Employee will not be treated
as the owner thereof under the Partnership Agreement for income tax purposes,
and any distributions received by the Employee from the Partnership with respect
to an unvested Unit for which no such election was made will be treated as
compensation to the Employee unless otherwise required under the Code.
Notwithstanding any provision of this Agreement to the contrary, the Employee
shall not have any right to receive any distributions of "available cash flow"
with respect to any of the Units made by the Partnership (a) in 1994 in respect
of the calendar quarter ended December 31, 1993, or (b) if the Closing Date
occurs after the 45th day of a calendar quarter commencing after 1993, in
respect of that calendar quarter. In accordance with Section 5.9(b) of the
Partnership Agreement, no allocations of income, gain, deductions or loss shall
be made with respect to any of the Units prior to 1994, and Alliance Capital
Management Corporation, as general partner of the Partnership, shall be free to
make special allocations under Section 5.8(g) of the Partnership Agreement.
11. SECTION 83(b) ELECTION. The Employee will not make an election
under Section 83(b) of the Code with respect to the Employee's acquisition of
the Units unless, prior to the date such election is filed with the Internal
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Revenue Service, the Employee notifies the Partnership of the Employee's
intention to file such election, furnishes a copy of the election so to be filed
to the Partnership, and pays the Partnership an amount equal to the amount of
any federal, state or local tax or any other charge required by
law to be withheld with respect to the Units by reason of the making of such
election.
12. PAYMENT OF WITHHOLDING TAX. In the event that the Partnership
determines that any federal, state or local tax or any other charge may now or
hereafter be required by law to be withheld with respect to the Units by reason
of this Agreement or otherwise, the Employee will promptly pay to the
Partnership, on at least seven business days' notice from the Partnership, an
amount equal to such withholding tax or charge (except as otherwise required by
Section 11 hereof). If the Employee does not promptly pay to the Partnership
the entire amount of such withholding tax or charge in accordance with such
notice, the Partnership may withhold the remaining amount thereof from any
amount otherwise due the Employee from the Partnership.
13. ACTION BY THE PARTNERSHIP. The parties hereto recognize that
neither the existence of this Agreement nor the issuance of Units to the
Employee pursuant hereto will impair the right of the Partnership or its
partners to, among other things, conduct, make or effect any change in the
Partnership's business, any issuance of debt obligations
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or other securities by the Partnership, any grant of options with respect to an
interest in the Partnership or any adjustment, recapitalization or other change
in the partnership interests of the Partnership (including, without limitation,
any distribution, subdivision or combination of limited partnership interests),
or any incorporation of the Partnership, provided that any such action is not in
violation of the Partnership Agreement. In the event of incorporation of the
Partnership, the Partnership will make arrangements with respect to restricted
stock and other securities, if any, received by the Employee in place of the
Units pursuant to the Partnership Agreement corresponding to the arrangements
with respect to the Units as it may reasonably deem appropriate to reflect such
changes and which are consistent in all relevant respects with the provisions of
this Agreement applicable to the Units.
14. GOVERNING LAW. This Agreement will be governed by and construed
in accordance with the laws of the State of New York applicable to agreements
made and to be performed in that State.
15. ENTIRE AGREEMENT; AMENDMENT. This Agreement supersedes any and
all existing agreements between the Employee and the Partnership relating to the
acquisition of Units by the Employee, other than the Employment Agreement. It
may not be amended except by a written agreement signed by both parties.
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16. WAIVER. The failure of a party to insist upon strict adherence
to any term of this Agreement on any occasion will not be considered a waiver
thereof or deprive that party of the right thereafter to insist upon strict
adherence to that term or any other term of this Agreement.
17. HEADINGS. Section headings are used herein for convenience of
reference only and will not affect the meaning of any provision of this
Agreement.
18. RULES OF CONSTRUCTION. Whenever the context so requires, the use
of the masculine gender will be deemed to include the feminine and vice versa,
and the use of the singular will be deemed to include the plural and vice versa.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
ALLIANCE CAPITAL MANAGEMENT L.P.
By Alliance Capital Management
Corporation, its General Partner
By:______________________________
Name:____________________________
Title:___________________________
EMPLOYEE
_________________________________
Name:
Address:
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